Federal law guarantees your employees the right to join or form a union. Federal law also prohibits discrimination against an employee for trying to join a union.[1] Nevertheless, there are steps you can take to prevent your workplace from becoming unionized. You are not powerless to prevent a union drive. In fact, the sooner you begin addressing employee complaints, the more likely you are to prevent a union from ever gaining a foothold in your business.

Steps

Method1

Responding to Employee Complaints

1

Survey your employees about their happiness. One good way to head off a union drive is to investigate how satisfied employees are with your workplace. You can send out a questionnaire and ask for anonymous responses to the following questions:[2]

How responsive is management to employee concerns?

How happy are employees with their compensation level?

Are there health and safety concerns that they want addressed?

2

Institute a grievance process. You should have some formal process employees can use to make complaints. You should also include the grievance process in your employee manuals and handbooks. By providing for a grievance process, employees will feel like their voices are heard at work.[3]

Make sure that supervisors and managers have an “open door” policy. State that no retaliation will take place for lodging a complaint.[4]

You might also create a grievance committee. This committee is then tasked with investigating and resolving disputes.[5]

Create a flowchart of who the employee should contact. State clearly the steps an employee must take. For example, you might require that the employee try to work out the dispute on their own before contacting their direct supervisor.[6] Then you could instruct the employee to contact the grievance committee if the direct supervisor does not resolve the dispute.

3

Explain unpopular decisions. Every business has ups and downs. If you need to make an unpopular business decision—such as cutting employee benefits, laying people off, or no longer giving employees free coffee—you should be transparent as to your reasons for taking the action.

Employees want to be treated fairly. They also understand that businesses sometimes have to make difficult decisions. The worst thing you could do is try to hide the reason why you made the unpopular decision.

Explain why the action was necessary for the business’s health and future.[7] If you fail to explain the actions, then employees may speculate and think the worst of management.

4

Recognize employee contributions. You can try to prevent disgruntled employees from forming a union by creating bonus/incentive plans.[8] Bonus plans include lump sum bonuses for employees who hit certain targets.[9]

You can also award other productive behavior, such as perfect attendance. Let the employee know why he or she is receiving the bonus. In this way, the employee feels like their efforts have been recognized. You also create an incentive for the employee to continue the good behavior.

Think about creating an employee of the month award. You probably see these every time you go into your grocery store. Usually, the store has a picture of an employee on the wall. These awards are a good way of recognizing the contributions of your employees and cost very little money.

5

Stop if you learn there is a union drive. You should try to address employee concerns as a way to keep them from forming a union. However, once you find out that your employees are actually unionizing, you should stop all attempts to change the workplace.

This may sound irrational. After all, you simply want to make things better for your workers. However, federal law prohibits employers from trying to “coerce” employees during a union drive. Your attempt to improve employee wages, for example, could be interpreted as an attempt to induce employees to reject the union.[10]

You should contact your attorney and ask how to proceed.

Method2

Limiting Union Solicitation

1

Start early. You can prevent employees from distributing union literature at work. However, you must have a general policy against solicitation in place before you hear the first rumblings of union organizing activity. If you wait, then your attempt to limit solicitation and distribution might look like an unfair labor practice.

2

Create a general prohibition. The best way to prevent union solicitation is to have a general policy in place early. Don’t specify that only union solicitation is prohibited—that would be discriminatory against unions and illegal. Instead, limit all distribution of materials and solicitation.

For example, you should adopt a policy like the following: “Distribution of advertising material, handbills or other literature in working areas of this facility is prohibited at any time. Solicitation by one employee of another is likewise prohibited if either employee is on working time.”[11] This prohibition is sufficiently general. It applies to a variety of distribution and solicitation.

By contrast, stating “No union material or information may be distributed in working areas” directly singles out unions. You can’t use a prohibition like this.

3

Enforce the prohibition consistently. It’s one thing to draft a prohibition and tell employees. You also need to consistently enforce it.[12] If you start enforcing the prohibition only after a union drive starts, then it looks like you are targeting unions.

Put the prohibition in your employee manuals and handbooks. Make sure that employees see it.

Punish any employee who violates the rule. Also document the punishment. For example, you should reprimand an employee who tries to sell her daughter’s Girl Scout cookies to her coworkers.

4

Prevent employees from advertising union meetings. If there is a union drive in your workplace, then you can prevent the employees from posting notices about upcoming meetings on your bulletin board. You are not discriminating against the union if you have restricted postings on your bulletin board in the past to certain topics (like advertisements to sell goods).[13]

Don’t allow the bulletin board to serve as a general forum for your employees. If you do, then you might have to allow the union to post meeting notices on the board.[14]

5

Refuse to provide the union with employee information. You do not have to give the union information about your employees, such as their names or addresses. The union has to rely on its own efforts to contact employees.[15]

However, if the union gets enough votes to qualify for a government-supervised election, then the law requires that you disclose the information at that time.

6

Understand that employees can organize during non-work periods. Although you do not have to allow solicitation during work hours, employees are free to engage in union activity during non-work hours, such as a lunch break.[16]

You don’t want to overstep and have employees accuse you of engaging in unfair labor practices. For this reason, you should understand that employees can talk about the union during their breaks.

Method3

Arguing Against a Union

1

Stick to facts, opinions, and examples. Federal law does not prevent management from expressing views about the union. However, you are limited in what you can say. In particular, you should stick to facts, opinions, and examples.[17]

Facts. You can factually state, “Employees who strike can be permanently replaced.” That is a fact.

Opinions. You can also say, “I don’t think you should sign a union card.” This is solely your opinion. You cannot follow up the opinion with a threat or with questions about what the employee will do. Nevertheless, you can state your opinions.

Examples. You can also give examples of what has happened in unionized workplaces. For example, you could say, “In the 1990s, our largest competitor was unionized. They shut down only a year later.” If this statement is factually correct, then you can state it. However, make sure your facts are accurate.

2

Research the union. You have the right to inform your employees about the union’s history and record.[18] You can be sure that the union is presenting a rosy view of their success. However, you can counter with facts and examples which tell a different story.

Perform basic background research on the union using the Internet. You can find out the history of the union and any embarrassing incidents (such as criminals who have worked for the union).

Use more advanced search engines. For example, you can use Lexis-Nexis, which is an online search engine with a repository of newspaper stories.

Look for businesses which had to close after the union was formed. You can then use them as an example.

3

Highlight your company’s good features. One legal way to counter a union drive is to emphasize everything that is good about your company: the pay, benefits, job security, etc.[19] This is a subtle way to remind employees that they don’t need a union.

You can also compare your company’s wages and benefits to those of unionized workplaces. If your compensation compares favorably, then you should emphasize that fact. Some employees might assume they will get a huge raise if they join a union. You can puncture that dream with well-sourced facts.

However, you cannot threaten to lay people off. You can’t say, “If this union goes through, I’m going to have to lay a bunch of you off.” That sounds too much like a threat (even if it accurately describes the economic realities of your business).

You also can’t lie. Don’t make up statistics or loosely quote things you might have heard on television. If you aren’t sure whether your wages and benefits are competitive, then don’t state that as a fact.

Method4

Answering Employee Questions Legally

1

Hire a lawyer. The line between legal and illegal employer conduct is very thin. For example, you can state your opinion about a union but not ask the employee what he thinks about the union. In everyday conversation, it is very natural to follow up an opinion with a question. However, in the union context, you could inadvertently commit an unfair labor practice if you do.

To help you understand what you can and can’t say, you need an experienced labor lawyer. To find a qualified labor lawyer, you can get a referral from another business which has recently undergone a union drive. Ask the company’s management if they would recommend their lawyer.

Before hiring the lawyer, make sure that the lawyer has experience representing companies (and not unions).

Also check that the lawyer is experienced in training managers and supervisors. You need all management at the workplace to understand what is not allowed. Many labor lawyers can present training seminars where they coach your staff.

2

Train managers and supervisors. The law closely limits what you can say or do, and your supervisory staff must know how it can respond to the union drive. In some situations, a supervisor can commit a labor violation so serious that a union election won’t need to be held.[20]

Employees will often approach your front-line management to discuss the union. Your staff must be prepared to answer questions lawfully.[21]

3

Tell employees they don’t have to agree to the union. One common question employees ask supervisors is whether or not they must sign the authorization card the union gives them. In order to hold a union election, a certain percentage of employees must sign the card. If employees are confused, they might ask their immediate supervisor if they have to sign.

The answer is “No.” Every employee has a legal right not to sign the authorization card.[22]

4

Inform employees of a union’s costs. Employees might also ask whether it costs money to join the union.

The supervisor can tell the employee that the union charges dues in addition to potential fines and assessments. For example, the union can assess fines for working if there is a strike. A union can also fine members for not attending a union meeting.[23]

5

Answer whether a union assures job security. Some employees might think a union guarantees job security. In this situation, they might ask their supervisor to confirm their suspicions.

In fact, a union does not guarantee job security. Your frontline supervisory staff can tell employees that the best way to assure job security is for the company to continue to grow and remain competitive in its market.[24]

6

Clarify that a striking employee is not paid. Your employees might also wonder whether they will be paid if they strike. Your staff should be prepared to answer accurately.

An employee has no right to payment. Furthermore, the employee has no guarantee of continued employment if they strike.[25]

Method5

Avoiding Other Unfair Labor Practices

1

Don’t punish employees. You can’t discriminate in any way against an employee who participates in union activity.[26] Accordingly, you shouldn’t demote, lay off, or refuse training to an employee engaged in the union drive.

Nevertheless, you can still discipline employees if they make job mistakes. An employee trying to form a union must still perform his or her job competently. You can discipline an employee who fails to fulfill their job requirements.[27]

2

Avoid making promises of increased benefits. You can’t try to ward off a union by promising to increase benefits, wages, or vacation time. You also can’t promise to improve working conditions in exchange for abandoning a union drive.[28]

If you had planned to improve benefits or wages before you learned of the union drive, then you should meet with a lawyer to discuss whether or not to go through with your plans.

It is possible to continue to go ahead in some situations, e.g., if you had informed the employees of the change before learning of the union drive. Nevertheless, proceed carefully under a lawyer’s guidance.

3

Don’t poll your employees. You shouldn’t question employees in any way about whether or not they want to join a union. For example, you should avoid the following:

Don’t ask, “How do you feel about the union?”[29] Although you can give your own opinion—“I don’t think you should join a union”—don’t follow up with a question about what the employee thinks.

Also avoid asking, “Did you attend the union meeting?” Don’t try to get employees to tell you the status of the union drive or who is participating, either.

4

Avoid attending union meetings. No member of management should attend a union meeting. This looks like spying. Also, if the employees know that the supervisor is there, they might claim to have been intimidated.[30]

If an employee voluntarily comes up to you and tells you what happened at the union meeting, then you are free to listen. Nevertheless, you shouldn’t say anything in response.

5

Don’t prohibit the wearing of union buttons. Unless you have a legitimate reason (such as the employees wear a uniform), you shouldn’t try to prevent employees from wearing union buttons or clothing.[31]

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